Law Enforcement and the Law

Is a passenger "seized" during a traffic stop? The Supreme Court answers

Every good street cop knows that a traffic stop must be based on at least reasonable suspicion of criminal activity. Officers know that the driver is “seized” by the traffic stop, and has the protection of Fourth Amendment rights to be free from unreasonable seizure.

A stop lacking reasonable suspicion (or probable cause) is generally regarded as “unreasonable” and is an invitation to suppression of any evidence found and is possibly grounds for a civil suit for wrongful detention. Until the recent U.S. Supreme Court decision in Brendlin v. California, --- U.S. ---, 2007 WL 1730143 (June 18, 2007), officers didn’t know whether the passengers in a vehicle were “seized” and could legally challenge a stop made without reasonable suspicion.

The facts of Brendlin’s case represent a common outcome of so-called “routine” traffic stops. Bruce Brendlin was a passenger in a car stopped by a California officer. The officer had spotted the car’s temporary registration while it was parked and had confirmed that the permanent registration was in process. After stopping the car, the officer recognized the passenger as “one of the Brendlin brothers” and checked for warrants. The officer found a parole violation arrest warrant for Bruce Brendlin. The officer arrested Brendlin, searched him, and found drug evidence.

The prosecutor conceded that there was no valid basis for the stop because the officer knew that the registration was valid and the officer had seen no other violation. However, the prosecutor argued that Brendlin was not seized by the traffic stop. Instead, Brendlin was seized only when the officer recognized him as the likely subject of an arrest warrant and took some action to detain him.

The California Court of Appeals sided with Brendlin, but a narrowly-divided California Supreme Court reversed, and ruled that Brendlin was not seized until after the officer had independent reasonable suspicion to detain him to inquire about the warrant. The California Supreme Court relied on the U.S. Supreme Court decision in California v. Hodari D., 499 U. S. 621 (1991), in which the Court noted that a person is not seized until actually submitting to a show of police authority. The California court asserted that because only the driver had the ability to comply with a police signal to pull over, only the driver had actually submitted to police authority and was seized.

Justice Souter offered the opinion of a unanimous court. Though the current Supreme Court has delivered several unanimous decisions, including last year’s strongly pro-public safety decision in Brigham City v. Stuart, a unanimous decision with a common opinion in favor of a suspect’s rights is a first for the Court lead by Chief Justice Roberts.

Focusing on the objective standard of whether a reasonable person would have believed that he or she was free to leave, Justice Souter said that the Court’s “intuitive conclusion” lead it to conclude “that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission." A reasonable passenger in a vehicle stopped by police would "expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his [or her] safety."

The Court noted its previous ruling in Maryland v. Wilson that permits officers to require the driver and any passengers to remain in the car, or to get out of the car, solely to preserve the officers’ safety. Maryland v. Wilson, 519 U.S. 408 (1997). Justice Souter explained that Brendlin’s act of remaining seated in the car may well have signaled his submission to police authority. Some courts have relied on Maryland v. Wilson to rule that officers may require the driver and passengers to remain inside the car. Rogala v. District of Columbia, 1616 F.3d 44 (D.C. Cir. 1998). Other courts extend the rule to require the driver and passengers to keep hands in plain sight during the traffic stop. United States v. Moorefield, 111 F.3d 10 (3rd Cir. 1997); King v. State, 696 So.2d 860 (Fla. App. 1997).

A majority of courts considering the issue, including nine federal circuit courts of appeal, had previously ruled that passengers were seized when a driver submits to a traffic stop. Only the supreme courts in California, Colorado and Washington had diverged from the majority view. Thus, the Brendlin decision does not dramatically alter the legal landscape for most officers, but it does provide a note of caution, and still leaves open several important questions about officers’ interactions with passengers. The decision may not even help Bruce Brendlin. The Supreme Court sent the case back to California to decide whether Brendlin’s status as a parole fugitive impacts his standing to challenge the admittedly-improper stop.

Brendlin v. California holds that passengers are “seized” and that officers should look for reasonable suspicion of criminal activity by the passenger if the officer intends to particularly detain the passenger or demand that the passenger comply with some order. However, a careful reading of Brendlin reminds officers that the standard for a traffic stop is relatively low—reasonable suspicion of any violation justifies a stop. Even if the officer subjectively intends to pursue a drug investigation, a traffic stop may be based on a broken tail light, or missing license plate light, or any similar minor violation.

Brendlin also did not reach another topic of hot discussion among courts, the extent of permissible questioning of passengers. Many courts have ruled that officers may routinely ask both the driver and passengers about loaded weapons in the car, without any reasonable suspicion. United States v. Holt, 264 F.3d 1215 (10th Cir. 2001) (en banc) (“We therefore conclude that allowing officers to ask about the presence of loaded weapons in a lawfully stopped vehicle will promote the government’s ‘legitimate and weighty’ interest in officer safety”); United States v. Purcell, 236 F.3d 1274 (11th Cir. 2001).

Some commentators wrongly suggest that officers cannot even ask passengers’ names and can never request identification documents. One court relied on the Supreme Court decision in Muehler v. Mena to establish the bright line rule that an officer may ask a passenger for identifying information. United States v. Hernandez, 418 F.3d 1206 (11th Cir. 2005) (“arguments that the trooper asked questions unrelated to either officer safety, the speeding offense, or processing the citation are not determinative of our evaluation of the constitutionality of the seizure here. We are to look only at the duration of the seizure given all the circumstances: was it for an unreasonable time?”). When an officer uses a friendly, conversation tone (talk nice, think mean!) to request passenger identification, most courts rule that the request is voluntary and requires no reasonable suspicion of criminal activity. State v. Williams, 590 S.E.2d 151 (Ga. App. 2003); State v. Smith, 683 N.W.2d 542 (Iowa 2004); People v. Jackson, 39 P.3d 1174 (Colo. 2002). Other courts have allowed officers’ requests for passenger identification based on the need to record witnesses’ names, even on a traffic citation. State v. Jones, 5 P.3d 1012 (Kan. App. 2000), aff’d, 17 P.3d 359 (Kan. 2001); State v. Chagaris, 669 N.E.2d 92 (Ohio App. 1995); People v. Grant, 266 Cal.Rptr. 587 (Cal. App. 1990).

Brendlin v. California should not raise an alarm as an expansion of suspects’ rights. Instead, read between the lines and understand that the Supreme Court is not only affirming the majority view, but is reminding officers of the great leeway allowed in traffic and investigative detentions.

About the author

Ken Wallentine is Vice President and Senior Legal Advisor of Lexipol LLC (www.Lexipol.com), the nation’s leading provider of risk management policies and resources for public safety agencies. He is a retired chief and former prosecutor with over three decades of public service.